Common residential landlord and tenant disputes 30th June 2015 By Philippa Seal and Elizabeth Dwomoh philippaseal@lambchambers.co.uk elizabethdwomoh@lambchambers.co.uk

Focus of the seminar The aim of this seminar is to focus on some of the most common problems faced by tenants in respect of their landlords and to identify practical solution to these problems.

The areas will include:   Tenancy deposits Disrepair Unlawful eviction

(1) Tenancy deposits

Common deposit problems The most common problems faced by tenants in relation to their deposits are when the landlord: fails to protect the deposit upon receipt;

fails to release the deposit after the end of the tenancy;

Unlawfully makes deductions from the deposit.

Failure to protect the deposit upon receipt S.213 HA 2004: Requirements relating to tenancy deposits Any tenancy deposit paid to a person in connection with a short hold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

(2) No person may require the payment of a tenancy deposit in connection with a short hold tenancy which is not to be subject to the requirement in subsection (1).

(3) Where a landlord receives a tenancy deposit in connection with a short hold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of [30] days beginning with the date on which it is received.

Failure to protect the deposit upon receipt S.213 HA 2004: Requirements relating to tenancy deposits cont… … (5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to-- (a) the authorised scheme applying to the deposit, (b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and (c) the operation of provisions of this Chapter in relation to the deposit, as may be prescribed.

Failure to protect the deposit upon receipt S.213 HA 2004: Requirements relating to tenancy deposits cont… … (6) The information required by subsection (5) must be given to the tenant and any relevant person-- (a) in the prescribed form or in a form substantially to the same effect, and (b) within the period of [30] days beginning with the date on which the deposit is received by the landlord.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 Facts: The landlord served on the tenant a s.21 notice, seeking possession. The tenant resisted the claim relying on HA 2004, s.215(1); namely, when the notice was served, his deposit was not protected. The tenant’s AST was granted before 6th April 2007. When the fixed term expired a statutory periodic tenancy arose by operation of HA 1988. The landlord continued to hold the deposit.

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 Held: The Court of Appeal held that the s.21 notice was invalid. The periodic tenancy constituted a new tenancy. The landlord was therefore subject to the requirements of HA 2004, s.213, as amended. The deposit provided at the start of the old tenancy was to be treated as security for the tenant’s performance of his new obligations under the periodic tenancy. In short, the tenant was deemed to have notionally paid the deposit to the landlord having waived his right to be credited with his original deposit held by the landlord.

deposit is not being held in accordance with an authorised scheme. 215 of HA 2004: Sanctions for non-compliance [(1) Subject to subsection (2A), if (whether before, on or after 6 April 2007) a tenancy deposit has been paid in connection with a short hold tenancy, no section 21 notice may be given in relation to the tenancy at a time when the deposit is not being held in accordance with an authorised scheme. (1A) Subject to subsection (2A), if a tenancy deposit has been paid in connection with a short hold tenancy on or after 6 April 2007, no section 21 notice may be given in relation to the tenancy at a time when section 213(3) has not been complied with in relation to the deposit.]

215 of HA 2004: Sanctions for non-compliance cont 215 of HA 2004: Sanctions for non-compliance cont. (2) [Subject to subsection (2A),] if section 213(6) is not complied with in relation to a deposit given in connection with a short hold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with. [(2A) Subsections (1)[, (1A)] and (2) do not apply in a case where-- (a) the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or (b) an application to [the county court] has been made under section 214(1) and has been determined by the court, withdrawn or settled by agreement between the parties.]

215 of HA 2004: Sanctions for non-compliance cont… (3) If any deposit given in connection with a short hold tenancy could not be lawfully required as a result of section 213(7), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit. (4) In subsection (3) "deposit" has the meaning given by section 213(8). (5) In this section a "section 21 notice" means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of short hold tenancy).

The prescribed information must include: the specific details of the tenancy deposit scheme including: the name, address, email address, telephone and fax number of the scheme administrator the name and contact details of the tenant

Prescribed info cont… the amount of the deposit paid the address to which the property relates any information contained in a leaflet supplied by the scheme operator to the landlord in respect of the operation of s.212 – 215 of the HA 2004 and Schedule 10 to the HA 2004

Prescribed information cont… details of the procedure governing the recovery the deposit at the end of the tenancy details of the procedure that applies when the landlord or tenant is not contactable at the end of the tenancy

Prescribed info cont… details of what to do if there is a dispute about the return of the deposit the name of the landlord or the landlord’s agent and their respective address and contact details a copy of the tenancy deposit certificate signed by the landlord or tenant.

214 HA 2004: Proceedings relating to tenancy deposits (1) Where a tenancy deposit has been paid in connection with a short hold tenancy [on or after 6 April 2007], the tenant or any relevant person (as defined by section 213(10)) may make an application to [the county court] on the grounds— [(a) that section 213(3) or (6) has not been complied with in relation to the deposit, or] (b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but hasbeen unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

214 HA 2004: Proceedings relating to tenancy deposits cont. [(1A) Subsection (1) also applies in a case where the tenancy has ended, and in such a case the reference in subsection (1) to the tenant is to a person who was a tenant under the tenancy.] (2) Subsections (3) and (4) apply [in the case of an application under subsection (1) if the tenancy has not ended and] the court-- [(a) is satisfied that section 213(3) or (6) has not been complied with in relation to the deposit, or] (b) is not satisfied that the deposit is being held in accordance with an authorised scheme, as the case may be.

(3) The court must, as it thinks fit, either-- 214 HA 2004: Proceedings relating to tenancy deposits cont. [(2A) Subsections (3A) and (4) apply in the case of an application under subsection (1) if the tenancy has ended (whether before or after the making of the application) and the court-- (a) is satisfied that section 213(3) or (6) has not been complied with in relation to the deposit, or (b) is not satisfied that the deposit is being held in accordance with an authorised scheme, as the case may be.] (3) The court must, as it thinks fit, either-- order the person who appears to the court to be holding the deposit to repay it to the applicant, or (b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme, within the period of 14 days beginning with the date of the making of the order.

of the making of the order. 214 HA 2004: Proceedings relating to tenancy deposits cont. [(3A) The court may order the person who appears to the court to be holding the deposit to repay all or part of it to the applicant within the period of 14 days beginning with the date of the making of the order.] (4) The court must . . . order the landlord to pay to the applicant a sum of money [not less than the amount of the deposit and not more than] three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

Failure to release a protected tenancy deposit at the end of the tenancy Subject to any lawful deductions the landlord must return a tenancy deposit to the tenant at the end of the tenancy. e.g. cleaning, unpaid rent and damage to the property beyond fair wear and tear.

Practical steps for a tenant’s recovering deposit The tenant should: contact the landlord directly check to see his or her deposit scheme offers ADR if the landlord does not consent to ADR within the scheme, consider bringing a small claims in the County Court to recover the deposit

Unlawful deduction from a protected tenancy deposit A landlord is legitimately entitled to deduct sums from a tenancy deposit for items such as unpaid rent, cleaning and damage beyond fair wear and tear.

Practical steps for recovering sums unlawfully deducted from a deposit A tenant should request a fully costed itemised bill from the landlord compare the itemised bill with the checking out inventory request copies of the receipts for the items purchased or service paid for by the landlord and deducted from the deposit put a complaint in writing to the landlord – indicating how much of the deposit should be returned consider ADR or a small claim

(2) Mice, Mould, and Mildew An Overview of Disrepair

Common Scenario My property is in disrepair and my landlord is refusing to carry out any works. Can I withhold my rent???

What are the 3 elements of a claim in disrepair?

Is there a breach of a repairing covenant?

Implied Covenant 11.— Repairing obligations in short leases. (1) In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor— (a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes),

(b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity), and

(c) to keep in repair and proper working order the installations in the dwelling-house for space heating and heating water.

Is there an express covenant in the lease which goes beyond section 11 Is there an express covenant in the lease which goes beyond section 11? “good condition”

Is the Complaint caused by Disrepair?

Damp? Asbestos? Mice?

Has the Landlord Been put on Notice???

Options... Withholding Rent?

Any constructive steps that the tenant can take?

Reduction in Rent? Contacting local authority? Undertaking work at own expense? (caution advised!)

(3) Unlawful Eviction

What is an unlawful eviction? S.27 HA 1988: Damages for unlawful eviction (1) This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. (2) This section also applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default— (a) attempts unlawfully to deprive the residential occupier of any premises of his occupation of the whole or part of the premises, or

What is an unlawful eviction? S.27 HA 1988: Damages for unlawful eviction cont. (b) knowing or having reasonable cause to believe that the conduct is likely to cause the residential occupier of any premises— to give up his occupation of the premises or any part thereof, or (ii) to refrain from exercising any right or pursuing any remedy in respect of the premises or any part thereof, does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, and, as a result, the residential occupier gives up his occupation of the premises as a residence.

What acts amounts to an unlawful eviction under s.27 of the HA 1988? The threat or use of force Changing the locks at the front of the property Locking parts of the property thereby denying access Denying a tenant the right of re-entry to the property

Remedies for unlawful eviction The measure of damages under s.28 of the HA 1988 is the difference between: market value of the Proposed Defendants’ freehold interest; and the market value of the Proposed Defendants’ freehold interest subject to an assured short hold tenancy. An expert surveyor may be required to ascertain the correct figure